ABSTRACT:
In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal,
the Supreme Court discarded a half century’s worth of settled doctrine
regarding pleading—the key to access to the federal courts—starting
anew with a heightened standard that threatens to leave many plaintiffs
out in the cold. Twombly and Iqbal ushered in
“plausibility” pleading and effectively retired “notice” pleading as
the operable standard of Federal Rule of Civil Procedure 8(a)(2). No
longer is the role of the complaint merely to give notice of the
plaintiff’s claim to enable the defendant to answer; rather, the
complaint now must present sufficient factual allegations to give rise
to a plausible inference of wrongdoing. This change bodes poorly for
plaintiffs’ access to the federal courts and may have a ripple effect
on the entire civil justice system.

The debate over the proper role of pleading in contemporary litigation has exploded since Twombly and Iqbal, with motions to dismiss based on those cases now the procedural device du jour.
On one side, the defense bar and major corporations praise the advent
of plausibility pleading, claiming that it is long overdue and
necessary to protect defendants from alleged widespread frivolous and
abusive litigation, conserve judicial resources, and protect American
industry and governmental entities from the high costs of discovery and
trial. Arrayed against that view are the plaintiffs’ bar and civil
rights and consumer groups who argue that plausibility pleading not
only will weed out frivolous claims but also will terminate meritorious
cases prematurely, further erode the right to a meaningful day in court
and the right to jury trial, and increase the burden on small
plaintiffs asserting claims against well-funded defendants. Although Twombly and Iqbal
have provided new fuel for a long simmering fire, the current
controversy is merely the most recent manifestation of a decades-old
ideological debate over what is the higher litigation value: access to
the federal courts or efficiency and economy in disposing of claims.